Citation Nr: 1337235 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-28 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for adenocarcinoma of the prostate with urinary incontinence. 2. Entitlement to service connection for a scar, claimed as residuals of prostate surgery. 3. Entitlement to service connection for erectile dysfunction. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and K.H. ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1970 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Portland, Oregon. The Veteran testified in March 2013 before the undersigned Veterans Law Judge seated at the RO. A transcript of this hearing has been associated with the electronic claims file in Virtual VA. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for prostate cancer as a result of herbicide exposure, and for a post-operative scar, and erectile dysfunction, both claimed as secondary to his prostate cancer. He initially stated that his service aboard a naval vessel that entered into the harbor at Da Nang, Vietnam resulted in exposure to Agent Orange and other herbicides. More recently, however, he testified at his March 2013 hearing that he was exposed to herbicides while his ship was docked in Guam. A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service connection for an asserted disorder for which such a presumption has been established under the law will be presumed if manifested within the applicable presumptive period. 38 U.S.C.A. § 1116 (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). This presumption of service connection may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d). Regarding the Veteran's assertions of Agent Orange exposure in Guam however, VA has developed specific procedures to determine whether a veteran was exposed to herbicides in a vicinity other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea. VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C., para 10(o), directs that the RO send a detailed statement of the Veteran's claimed herbicide exposure to the Compensation and Pension (C&P) Service via e-mail and a review be requested of the Department of Defense's (DoD's) inventory of herbicide operations to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. If sufficient information cannot be obtained from the Veteran to meet JSRRC guidelines, then the RO is to produce a formal memorandum for the file documenting efforts to obtain information, and then forward the claim for rating activity. The RO has not developed the Veteran's claim with respect to potential exposure to an herbicide agent in Guam, as such assertions were not originally advanced by the Veteran. Nonetheless, the Board finds that in order to afford the Veteran every benefit of the doubt, the RO/AMC should take the necessary actions to comply with the evidentiary development procedures required by M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o). The U.S. Court of Appeals for Veterans Claims (Court) has consistently held that evidentiary development procedures provided in the Adjudication Procedure Manual are binding. See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty-to-assist requirement when it failed to remand the case for compliance with the evidentiary development called for by M21-1). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take the necessary actions to comply with the evidentiary development procedures required by M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o). The RO/AMC should provide a detailed statement of the Veteran's claimed herbicide exposure in Guam to the C&P Service and request a review of the DoD inventory of herbicide operations to determine whether herbicides were used, tested, or stored as alleged on Guam. If the exposure is not verified, a request must then be sent to the JSRRC for verification of the Veteran's possible Agent Orange exposure in Guam during the Veteran's relevant service period. If the JSRRC determines that there is insufficient information to verify the Veteran's claimed exposure, a formal finding should be made in this regard and associated with the record. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).